Advice, please…

We try to avoid meta around these parts, but the trainwreck on the #equalmarriage thread has prompted some necessary thinking on all our parts, and an admission from me. First, the thinking.

This blog — in having four writers with differing politics — is a risky venture. Going by other blogs around the traps, a fair degree of political conformity is necessary to stop the blog imploding in recriminations and general bitterness. We have avoided this by doing the following:

1. Enforcing standards of politeness that would put the Pymble Pony Club to shame.

2. Demanding empirical data for all serious arguments.

3. Expecting frank disclosure of the underlying rationale for one’s beliefs when requested to do so.

4. Making our blog admins all women.

We have thought seriously about deviating from only the last of these, and only once. In the end we decided to go with various male guest posters, while keeping the blog admins solely women. I like that this is a general legal and political blog, not a feminist blog. Don’t get us wrong — we think feminism is interesting and important. It’s just we think a lot of other things are interesting and important too, and our viewing lenses come from law and economics and literature as much as they do from the fact that we are women.

But: true confessions time.

Over the years, we have developed three ‘off-limits’ topics. Gentle macchia, abortion and Israel/Palestine. Watching otherwise sane commenters variously (a) endorse the Protocols of the Elders of Zion (b) state that the best response to rape was just to ‘lie back and enjoy it’ while treating any resultant child as ‘a gift’ and (c) argue that denying climate change was akin to Holocaust denial (along with accompanying abusive and incoherent soundtracks in all three cases) meant that we thought better of it. People can’t, it seems, engage in reasonable disagreement on those topics.

Friends of mine here in Scotland alerted me to what was happening on the #equalmarriage thread the other morning, and as I watched it unfold, it occurred to me that I was going to have to add another topic to the three listed above. ‘Right,’ I thought, ‘first and last time we discuss gay marriage in a standalone post’. I contacted Legal Eagle to that effect, after looking at the festering sewer of a moderation filter. Apparently I didn’t see the worst of it.

I told various Scots friends that we’d added gay marriage to the ‘off-limits’ list, expecting nodding agreement (how people in Oxford reacted), only to get a very Scottish argument to the effect that by doing that we were giving in. ‘People have to learn to disagree reasonably on those issues, too. And if they can’t, don’t take their arguments seriously’.

In a very abbreviated form, this is a version of an argument once made by German philosopher Jürgen Habermas: if one can’t make a case reasonably, accepting the possibility of defeat, then while one should be permitted free speech, there is no requirement that anyone else has to pay attention. In other words, make your case reasonably and be heard (if not always heeded), or make your case unreasonably and be laughed at (as well as definitively not heeded).

Now some critics of Habermas’s ideas allege that he thinks that irrational commentators should not enjoy freedom of speech. This is not what he says. Like most Continental philosophers, the man is a terrible writer, but he does not propose shutting people up — apart, I think, from the peculiar German management of neo-Nazism. And even classical liberals of my acquaintance — Tom G. Palmer is one — accept that neo-Nazism in Germany (especially in the 10 years or so post-war) is just about as awkward as it gets when it comes to defending freedom of speech.

That the same issue has been around in more familiar contexts is illustrated by the quotation from Barry Goldwater accompanying this post. One thing is certain: Barry Goldwater was no Continental ‘public sphere’ theorist, but he knew a totalising ideology when he saw it. And pretending that we can develop public policy while avoiding some of the topics that bring the nutters out of the woodwork is not going to make the nutters go away, or the issues any easier. Like Barry Goldwater, I think the Republican Party did itself a grave disservice in opening the door to the religious right. The standard line about vampires comes to mind — once they’re invited inside, they’ll never leave. The GOP is now paying the price for ‘engage and accommodate’ rather than ‘engage and rebut’.

What should we do with these three (perhaps four) divisive topics? At the moment, the switch is flicked to ‘ignore’, and for very good reason. I agree with Goldwater and Habermas that ‘engage and accommodate’ is a very bad idea — perhaps even worse than ‘ignore’. This means that the best empirical arguments ought to win, and if data defeats principle, then principle has to go. However, that doesn’t solve the problem of how to ‘engage and rebut’ without descending into shrill and Platonic arguments that one’s interlocutor is too stupid to vote/breathe/live.

By way of illustration, this article (by Will Wilkinson in the Economist) indicates how I approach public policy (or, at least I try to, with some notable failures along the way).

So, over to our readers. Advice, please.

Next, an admission from me. The individual who turned up as ‘parallel’ on the #equalmarriage thread is Andrew Parle, who has commented previously on this blog under his own name (or with a recognisable/consistent handle). By way of background — in terms of other stuff I do — I am also co-moderator of the Australian Skeptics group forum, and know Andrew both from that group, and also socially (although the latter association is more slight). We have always been friendly in the past, and I have yet to establish what would inspire him to both troll and sockpuppet on this blog. I doubt I will ever get to the bottom of it. If nothing else it is illustrative of the depths of irrationality produced in otherwise reasonable people by topics like gay marriage (or Gentle Macchia, or abortion, or Israel/Palestine). I also don’t think Andrew is Catholic Action’s poster-boy; I started to twig that something was amiss when he began to make Catholic natural law doctrinal errors (no, ‘form’ and ‘purpose’ are not the same thing; read Aquinas).

In the past, we have tried to deal gently with sockpuppets, on the basis that sometimes people really do need the cover of anonymity or something like it, but I am starting to move closer to a rebuttable presumption against anonymity. This means anonymity is sometimes okay (the presumption is rebuttable, remember), but it also means that the anonymous person bears the evidentiary onus as to why their identity should be protected. If we become satisfied that we are being played for suckers by anonyms or sockpuppets, we will out them publicly (as I have done here). If the behaviour is repeated, we will make contact with the sockpuppet’s employer.

And finally, since it was rather bypassed thanks to all the silliness, may I recommend you read Legal Eagle’s excellent review of Russell Blackford’s latest book?

Well, we’re all socially libertarian, I’d say – which does help. It’s on other matters that we differ. A big one between SL and I is gun-control, for example, or the welfare state. Or special measures for particular minorities…I don’t totally rule it out. And I am a big supporter of the RDA, and a member of a union etc etc.

[Edited to add: Basically whenever I do one of those political quizzy things, I come out as libertarian left...if that makes sense...]

I must admit I had missed the comments thread (normally only popping in from my feedreader to participate in the discussion on a post here and there). FWIW I think it would be a shame to put equal marriage off the books, if only because there are likely to be a lot of legal developments in this area in the coming years.

Whilst I appreciate that the moderation task might be more difficult, it would be a shame if a forum which encourages sensible and respectful discussion of issues felt it necessary to avoid commenting on an area which is in the midst of genuine legal development.

To some extent, I see those other topics as being on the “the poor will be with you always” list – while the argument continues, a decisive resolution or change to those issues are not obviously forthcoming.

From what I can tell, what you want is a few subjects off the site because you *don’t* want to moderate, yes? (Ie. let people continue to self-moderate according to the rules) I agree with Dan about equal marriage being a subject I’d like to see discussed in the future as it cuts so deep into fundamentals of society and law. Isn’t a warning of banning if people overdo it a fair call?

Btw, I tried to look up “Gentle Macchia” with no luck. Anybody want to clue me in?

I come out as right-libertarian on quizzes like that, partly because I am genuinely conservative on education — I’d shut most of Britain’s universities and go back to a model where far fewer people went to university, and those that did would pursue far more traditional courses. I’d also repeal the Equalities Act, and any anti-discrimination law drafted to enshrine positive rights.

On other stuff (spot the scary libertarian) I’d like to see (in Australia) the income tax power go back to the states (competitive jurisdictions are quite a useful thing), in Britain the scrapping of most of the ‘elf and beverage’ (health and safety regime), much stricter (Roman style) causation tests in delict/tort matters (basically the only reason French industry remains competitive, and why you see scaffolding in France in places you’d never see it in Britain).

And, of course, much lower taxes, especially in the UK. Tax rates are confiscatory in Britain, and the money is badly spent. At the same time I acknowledge that people will tolerate confiscatory tax rates if the money is spent wisely (Norway).

[Ah, gentle macchia - pop it into an anagram unscrambler and all will be revealed... although the answer is in the tags to this post].

TerjeP @2 I think I may be more left than the other two, and SL is more right then LE and I. If left and right mean anything. But I think we’re all fairly libertarian. Mostly. Dunno about DeM; she seems to be an equal-opportunity smashing photocartoonist!

I have nothing to add except that I am sad that discussion on SSM may have to be banned (although I can quite see why – the spam filter must have been very messy and I’m glad I didn’t have to clean it). Although I am in the throes of thesis hell and don’t get over here as much as I’d like, I still read along regularly when I can.

There is a lot of nastiness abroad on teh internetz – I have seen it referred to as ‘piling on’, referring to the game that children play where they all climb on top of each other and the one on the bottom gets a bit squashed. I accidentally read a newspaper column online recently about teachers feeling they were being made responsible for teaching children to behave socially, their parents having (apparently) abdicated that responsibility, and the anti-teacher hate in the comments was truly gob-smacking. Apparently teachers have been stopping parents from disciplining their children for years (how?!?), so it’s all their own fault.

As we can’t stop abuse of the blog happening, I suppose it’s reasonable to limit the occasions on which it’s most likely to occur. But I’m not happy about it being necessary.

Ah, gotcha. I found references to the top part of milk going lumpy (ie. the skin) and feared it had something to do with lactose intolerance to violence …

As to the Norway reference, I think that one reason it works there is because we get so much back for it (I have a long list of things and benefits that I no longer can take for granted) and the spending has direct ramification and accountability of the politicians, at least far more than I see now that I live in Australia (where the opposite seems to be the case). And, to be frank, I don’t feel like I paid more taxes in Norway, it only felt that way because we got more zero’s in the figure.

It was kind of interesting having ‘Parallel’ appear here because his comments were of a type you see often elsewhere and not much here. Central to this is to make a blanket statement of orthodoxy, charge those in disagreement with gross ignorance, place the burden of argument on the other side and then evade all salient points made in furtherance of those arguments. I was waiting for the inevitable assertion that it was those opposed to Parallel who were indeed guilty of the above listed tactics.

It’s the only one he didn’t appear to use. There’s a novel by Julian Barnes in which a communist ex-dictator uses this sort of blunt way with the facts. It’s sadly, very effective.

I am probably best described (and often am) as a “Quaker pain-in-the-@ss” which I think captures me quite well, but thanks for the compliment WK and good luck with the thesis.

The Scots in me says post what you like and may the devil take the hindmost *BUT* we also have accept the duty of responsible moderators to not knowingly post something likely to stir unless we are going to have the time available to manage the thread for a couple of days. (With the caveat for our readers that it isn’t always easy to predict which topics will spontaneously mutate into threads of doom…).

That all sounds good to me, SL, although I’m not sure what “gentle macchia” means. I typed it into google and found that all the links lead to you other than one that is written in Italian!

I think there is little point in having further debate on the topic of gay marriage since the participants on both sides mostly replay the same tired old arguments. However if a moderator wants to make a certain factual point, for example, to summarise legislative developments pertaining to gay marriage in a particular jurisdiction, they should be able to do so while turning off comments for that particular post (I’m assuming this is possible).

The punishments you outline for sockpuppets also seem fair.

I’ve learnt a great deal from this blog but most importantly it makes me re-examine my prejudices. Even though I’m not fond of right libertarianism, I think Skeptic Lawyer has been able to mount an intellectually rigorous case in defence of that particular philosophy and hopefully one day she’ll produce a weighty book of her own unique scholarship.

Well, while I’m still formulating whatever possible advice I might offer to the moderators, I’d like to offer SL a deal: if she will stop this continual bashing of the Pymble Pony Club (an unhealthy fixation, it seems to me) then I will refrain from submitting a bill for past royalties on the term ‘gentle macchia’

One thing I would say at this stage is that if I were ever banned or moderated on this blog, I would still support completely the overarcing “your blog, your rules” approach which has been stated here many times.

More seriously, ToDs are an occupational hazard of blogging. However I might give consideration to installing this plugin.

Earlier today I bragged in passing about Ozblogistan. This blog is definitely one of the best things I have a hand in. I like to think that I model a classically liberal dictator: under my light hand, the hundred flowers bloom and schools contend (insert staring-forcefully-into-middle-distance-picture here).

I feel that the propertarian argument works well. I as blog host create a lightly-ruled framework, and each blog has owners who enforce their own taste in rules. Folk who frequent one blog may be trespassers at another. That’s as it should be; property rights have peacefully settled the dispute.

Topics which provoke threads of doom, and on which you do not have special expertise, I think you should generally avoid. I think all 3 of your current topic bans fit this category more or less. Although legal perspectives on them could be tempting, it’s not a huge loss.

Closing a thread to comments should not be considered a big thing. The value of a thread diminishes as it grows. If a thread has more than 50 comments, reading them all takes forever, and people don’t respond to each other’s earlier comments in a well considered way. People who want to continue the discussion can find another forum, although suggesting one is a friendly act which you have sometimes done.

On SSM and many other topics, you do have great expertise and/or wisdom to contribute. I’d suggest saying up front that you’ll close the comments after more than 10 low value comments. Don’t take the trouble to warn etc, just close. E.g. “Sorry, low value comment limit reached. Closing thread” or “Sorry, spam bucket overflowing with junk. Closing the thread and discarding the bucket’s contents”

It’s your voluntary work keeping the blog comments in order, and your choice how much of that work to do before pulling the plug. I think the original posts are the core value of this blog.

Finally, there are benefits to anonymity in comments threads, but no legitimacy to sock puppets, and your proposed outing is a good idea.

The shorter version of my opinion is that I endorse Mel’s comments @11. The longer version goes as follows, but feel free to skip, moderate, or simply ROFL:

1) any advice given costs nothing, but might result in continued, or heavier moderation duties. Value it accordingly.
2) I agree with and support SL’s four guiding principles, although I do wish the Pony Club could be relocated (disclosure: this is a very lucrative source of clients, being present or past members, patrons, etc. thereof)
3) LE’s “I am my own wing” long ago post remains fresh for me, even if she has modified her own stance in the interim. I’d recommend a re-read to anyone.
4) “Trust your instincts” might seem illogical to mention here, however if you look at the #em comment thread, you find that the first comment from LE, SL and DEM was spot on as it turned out – ably if more impolitely supported by (among others) Mel’s reaction, Lorenzo’s dismissal, and my own polite suggestion that parallel ‘might be a Celtic’. This is no accident; physical ‘survival instincts’ are mirrored in the intellectual world by years of sorting the wheat from the chaff, the gold from the crap. Trust your instincts, and don’t apologise.
5) I’d hate to see the blog shy away from controversy because that is where the ‘intellectual edge’ lies. But see my 1) above.
6) Cutting off ToD comments is attractive, but then on #em I would have missed both desipis and Zoe Brain’s comments which I got great value from.

What to do, what to do? Whatever you will, whatever you are comfortable with, whatever…

I am such a doofus, I thought it was a term about genital mutilation! You are wise to avoid that subject. Not because it leads to trolling necessarily – but because the conversations that result can be mind-numblingly boring.

Threads of doom can be fun when, as in some of the cases at Catallaxy and LP, the arguments turn into banter joke songs, and banter about how the thread can be made even longer. They can be hard on the computer though.

Nowadays every weekend forum at Catallaxy turns into a thread of doom. There must be a few regulars there with too much time on their hands…

Tim, we’re really careful to try not to squelch dissent. As long as it’s (reasonably) politely expressed, that’s fine. Once people just start having a go at one another or the bloggers, though…

The important thing to me on a blog is listening. I have no interest in reading threads where people don’t listen, and just rant about those they disagree with. And KVD, I’m so glad you like my very own wing post. I don’t think I’ve changed much – I’m still hard to pigeonhole, and I still value the same things – except that I’m probably better informed these days because I’ve learned a lot from all the posters on these blogs!

P.S. I agree with the comments that it’s a pity not to discuss SSM, or any of those other things. I was totally unprepared for crazies on the SSM topic, as it’s never happened to me before, but I guess the readership is much larger now.

I think people need to be reminded that whilst a blog is in a public area (on the internet) each particular blog is the personal space of the authors of those blogs.

It’s like joining a book club. You’re welcome to join. You’re welcome to participate. You’re welcome to your own point of view. But one should not leave their common courtesy at the door simply because the topic is a hot one.

It’s certainly a shame that most blogs I know have certain topics they simply won’t address or discuss thanks to the trolls. And yes, it would seem some topics can cause even the politest of commenters to become concern trolls in a nano-second.

And even though I would find it fascinating to discover all your POVs on those topics, I have other spaces I can go if I would like to discuss them. The internet is a very big place after all. I enjoy the civility here. (And the ability of regulars to take the piss without being nasty.)

You cover a wide variety of topics as it is.

Well, that was a long winded way of saying, I agree with every one else. It’s a shame to have to sacrifice some topics, but in the name of longevity and intelligent discourse I doubt you’ll lose readership over it.

I, of course, support the rights of the property owners to do as they wilt

The SSM thing runs in to the insult-of-equality problem. If you don’t think homosexuals are “proper” people and don’t have “proper” relationships, then one is insulted that such “perversions” are even considered to be treated like “real people” and “real relationships”. A particularly vicious example of the results of this wider frame of mind is outlined here.

The same “insult of equality” problem arises in the Israel/Palestine dispute: it is obvious a lot of Muslims are just outraged that Jews have any power, let alone are embarrassingly successful. The Jewish state becomes a “cosmic insult”, an offense against the proper order of things. (As it does for many progressivists, who are outraged that a state might be based on an ethnic identity in a serious way and in their striving to be sympathetic to oppressed non-Westerners have to incorporate sympathy to attitudes based on the notion that a successful Jewish state is a cosmic insult.)

Abortion is either murder or a right. It is a profound moral boundary issue in a different way.

Gentle macchia is about whether you care about The Future Of The Planet and Take Science Seriously.

They are all, for some people, profoundly defining moral boundary issues. No wonder they generate lots of heat.

Though, given this is commenting on blogs and all, I am reminded of Henry Kissinger’s response to the question why are academic politics so vicious? His answer: because the stakes are so small.

I think the bloggers here have done a great job of producing quality posts as well as fostering a culture of decent commentary. It’s a shame that it’s not been possible to keep that culture across all topics. While I certainly don’t want to see the site degrade, I’m not sure the occasional ‘thread of doom’ does all that much harm and think it would be good to sometimes attempt to discuss such topics. As for the #em thread, I’m not sure the actions of that particular individual (or the outcomes of an individual thread) should mark the topic as off limits (although I don’t know how many other objectionable comments were moderated out).

I’ve seen a few blogs that tackle this issue by applying different commenting rules or guidelines to posts they feel might cause trouble (the restrictive rules are indicated through the post topic, or at the end of the post just above the comment section).

Rules/guidelines I’ve seen include:
* limiting the rate of comments (to give the mods/admins time to react);
* limiting the number of comments in a row (to minimise individuals dominating a thread);
* limiting the number of replies to any given comment (to minimise the ‘pile on’ issue wittyknitter identified, but it can also limit the disruption caused by any one commenter);
* limiting the scope of the discussion; or
* limiting the participants in particular threads.
I think such an approach could be better than a simple “no comments” approach (and could be applied reactively instead of shutting down comments completely).

I must admit I didn’t add one little detail: the extent to which the revolting comments come from all sides of politics. Two fall on one side: abortion and gay marriage. The revolting abusers and idiots are all conservative, never libertarian or progressive. Gentle macchia shows progressives in a poor light, abusing in tones remarkably similar to those adopted by conservatives when it comes to abortion and gay marriage.

Israel/Palestine is trickier. The nastiest comments came from a couple of lefties (the Protocols argument I outlined in the post), but a lot of Israel’s ‘friends’ appear never to have heard the phrase that begins ‘with friends like these…’

The standard line is to accuse me of anti-semitism, as though writing about anti-semitic people somehow means a direct line can be drawn between an author and her characters. That aside, there is a general emotional tone-deafness when it comes to how they make their case. I’ve seen this in forums other than this blog, and have often been the one delegated to explain to visiting Americans why the UK’s Conservative Party has such a wide range of views on Israel, including some that are borderline contemptuous. [US Republicans expect the party of the right to be more aggressively pro-Israel]. This variability is true on the other side of the House too (Labour has ‘Labour for Palestine’ and ‘Labour for Israel’ groups, for example, although is generally more pro-Israel than the Tory Party).

Few people outside Britain realise that the 1991 War Crimes Act — vigorously campaigned for by Jewish groups — is the only piece of legislation where a Conservative government invoked the Parliament Acts 1911 and 1949 to bypass the House of Lords, for example. It bitterly divided the Party and provoked the closest Britain can get to a constitutional crisis. It also meant that the Israel lobby ‘expended’ a great deal of political capital for one small, symbolic bill. Even worse was when the only subsequent trial (that of Anthony Sawoniuk) involved changes to the law of evidence such as to make a trial lawyer blanche in horror (effectively, guilt by association) in order to secure a conviction. It’s a fair argument that Sawoniuk contributed to Britain’s long slide down the civil liberties slippery slope.

[Edited to add: there is a great deal of food for thought and good suggestions for us admins in this thread, some of which we are going to implement. More soon.]

Movius, there was horrid stuff in the spammer by one other troll – just abusive and awful. It’s weird, isn’t it, how negative comments somehow dominate one’s view of something? If I receive a class survey and 20 people are happy, but 2 people say really really unpleasant things, somehow it’s those 2 who stick in my head. I know they shouldn’t matter so much, but they do.

I really like the idea of stopping people posting too much – Jacques has identified that app which can achieve this. That way trolls and loonies are stopped.

I purposely didn’t contribute to the #em thing, because I’m still formulating my own ideas. I don’t have a great deal of time for marriage having just had one ended for me very much against my own wishes. I tend to think that the marriage brand has been severely trashed in recent decades and now the trashers (very general I know) want to get in on the brand. One day I’ll post something which explains my thoughts. Gentle Macchia is what brought me to this community.

Cutting comments after 50 would limit my contribution, because I often wait to watch other people’s opinions before I add my own. Reading others’ opinions can inform my own before I comment.

It’s weird, isn’t it, how negative comments somehow dominate one’s view of something? If I receive a class survey and 20 people are happy, but 2 people say really really unpleasant things, somehow it’s those 2 who stick in my head.

Jacques’s book recommendation time! Thinking, Fast and Slow by Daniel Kahneman. Fascinating reading and I suspect it would shed illumination on a lot of legal paradoxes.

I also feel a book on a fuzzy logic would be a good read for legal thinking (no: this is not a joke), but I haven’t crossed one that gives a good account for the very intelligent laypersons who post here.

kvd@28 Simply agree with legal theorist Carl Schmitt that not everyone with a human face is “properly” human.

LE@30

It’s weird, isn’t it, how negative comments somehow dominate one’s view of something? If I receive a class survey and 20 people are happy, but 2 people say really really unpleasant things, somehow it’s those 2 who stick in my head. I know they shouldn’t matter so much, but they do.

We are programmed to respond to potential threats. It encourages focus on the negative.

There are also cultural variations and time-attitude variations, but they work off that basic feature.

As a result of this thread topic, this morning I ventured into the comment stream of a blog I follow from the US. It’s run by a law professor, with an emphasis on US constitutional law (which I find endlessly interesting) but includes a mix of politics, art and fashion. Enough; simply to state that I get value from it.

(btw as a result of close reading, I know far more than is healthy about the fortunes of Wisconsin Governor Scott Walker and their now dysfunctional Supremes – who positively don’t sing in tune)

The thread was on Rick Santorum’s position on Roe v Wade (forgive if citation improperly expressed) and my conclusion was that skepticlawyer blog has chosen well to avoid the topic. Lorenzo’s summation is absolutely spot on.

That is a great shame, but I can offer no suggestion for improving the ‘conversation’; I’m just recording that nothing seems to have changed since last I checked.

Another topic definitely best avoided is IQ and race. Unlike most lefties I accept that race is real and not just a social construct; IQ tests are at least roughly accurate indicators of intellectual ability; and the different races have different mean IQs, for example the north Asian group (China, Japan etc …) kick whitey’s ass. On the other hand, most folk who want to make a big deal about race and IQ on blogs are socially inadequate white dorks with impure motives, so the subject is best banned from blog discussion.

Jacques @ 32 – it’s a testament to how excellent your other book recommendations have been that I just went out and immediately ordered that book. I find that you and SL have impeccable book recommendation taste.

I am also sure there is lots of fuzzy logic in law. Just think about precedent. You need enough bindingness to make it predictable, not so much that it’s inflexible…

That’s a good point, Mel @37, although it’s helped by the fact that noone here has the expertise to write about that issue. In my case, the same rule applies to gentle macchia – what I do know about it would fit comfortably on the back of an envelope. This ties in with David P’s point above, that is, we should stick to what we know about.

Unfortunately, abortion and gay marriage are two things three of us do know an enormous amount about. The one abortion thread of doom we had involved DEM doing a lot of people’s heads in, because for Quakers it’s not a murder v right scenario, but rather a type of religious test. Abortion has never been murder at either common law or in Roman law before the 19th century, either – it was always categorized separately. Infanticide later joined it there, because juries simply refused to convict in both cases.

In other words, unless one knows a great deal about both religious and legal history, then it is difficult to comment intelligently on abortion. Going and reading Roe v Wade won’t get you very far.

Gay marriage is similar to abortion. Commenting intelligently requires a great deal of knowledge about legal history and marriage customs. It is not possible to make a case either way based on ‘first principles’, something a lot of people on all sides of the issue want to do.

Then there is the conundrum – if one is to have ssm – of getting the drafting right so that the ridiculous and harmful situations Zoe raised do not come about.

If I have a special talent in law it is in my drafting skills, and that is where I have been invited to contribute here in Scotland. If I am unable to write about that process on the blog as it unfolds because of trolls, I will be very annoyed.

What about a states’-rights argument on abortion and gay marriage? Can an intelligent case be made for a states’-rights approach (both in favor of pro-abortion states and pro-gay-marriage states, and in favor of more conservative states) without having much knowledge of legal history or religion?

Absolutely, Tim – although knowledge of the US Constitution would certainly help! I put that in the ‘legal history’ category because the US Constitution is by virtue of its age an important part of legal history. And while I am a lawyer I am not a US lawyer

Indeedy, I wanted to write a post on how Ron Paul’s ‘states rights’ approach to both abortion and gay marriage is remarkably similar to the way both issues are handled in EU law (free movement of goods, persons, services and establishment, but a wide margin of appreciation for ‘moral law’ in each individual Member State). I have the relevant EU law knowledge to do a nice comparative analysis, and could mug up on the US law (getting USAnian lawyer friends like yourself to check, mainly on how similar in effect the US inter-state commerce clause is to the operation of Articles 45, 49, 54 and 56 TFEU and Directive 2004/38).

I have become convinced, over time, that the EU approach is the right one, simply because it has had the effect of draining the bitterness out of the issue (particularly with abortion). Is it perfect? No, of course not, mainly because nobody wins. But that’s the nature of politics (as Barry Goldwater pointed out in the comment I’ve quoted from him).

However, I’ve been put off writing the piece because of the danger of trolling and abuse, and the fact that I know what happened to DEM on the last abortion thread of doom (it is most unfair to expect someone with MS to concrete themselves in front of a computer for 3 days managing snark, vitriol and abuse, simply because I have to work).

Thank you SL. Your thoughts are appreciated. It is indeed a sorry (and embarassing) thing that you have to fear trolling, sockpuppeting, and abuse just because you wanted to address a particular topic, indeed an important topic or pair of topics.

I am glad that there is some common ground. I agree that a states’ rights approach has the potential to diffuse some of the acrimony and vitriol. I have no desire to tell California or New York or Massachusetts (or other more liberal states) or New South Wales or Scotland or Germany what laws it should have on abortion rights or gay marriage rights. I just want to have some influence on the law of my own state, Michigan.

You see, the prolife or anti-abortion side is not as homogeneous as it sometimes portrayed to be. Some liberals and libertarians seem to think, incorrectly imo, that all of us are zealously religious folks who want to impose their religion on others. Not true. There are certainly some bad apples on the socially conservative side (and I apologize, to you the pro-choice side, for the behavior of some on the prolife side), and there are some folks whose religious beliefs influence their politics, and some reasonable people who sometimes get worked up too much in discussions (perhaps because their arguments are usually shunned without being considered or addressed?), we are generally very cool on the prolife side, and not very much like the caricature you paint with the quote from Goldwater. The liberals and libertarians who address abortion rights and gay marriage rights rarely address the states’ rights arguments presented by the more reasonable quarters of the prolife side.

* * *
Now, let me take a step back from the foregoing more substantive points and be an even more literal and logical lawyer. I take things literally. I frame questions carefully and usually mean them literally. I normally do not engage an argument (at least not at first), but merely seek to influence how the issue is framed. Defining what the issue really is.

My question was intended to get at what you’ve addressed, yes (whether the states’ rights approach has any merit). But it was also intended in an even more literal sense. Can an intelligent case be made for the states’ rights approach without having much knowledge of legal stuff or religion? Your answer, as I read it, seems to suggest “no.”

I think it can. I think that an average person in the West can make a good case for the states’ rights approach, just from first principles. Indeed, that’s what I do. More, I may be wrong, but I tend to think that that may be the *only* way an intellectually rigorous case can be made for the states’ rights approach. American constitutional history is relevant, yes (in the American context). So are the constitutional history and constitutional provisions of Europe, Australia, and the U.K. But most Americans (just to use an example) don’t have the time or the wherewithal to research constitutional history. Without a commitment to democracy and first principles of republicanism, I’m not sure I would be able to well argue that unelected federal judges (whom we in the prolife camp call activist judges) should not be making the calls in the kulturkampf. We the conservatives should have to “fight it out” (so to speak!) with you the liberarians and socially liberal folks in the political branches. Or even through direct democracy (as was used in California on the gay marriage issue).

TM@42 One can think that Roe v Wade was a really bad idea without therefore saying judges have no role. There are such things as tyrannical majorities. Once the US accepted the Bill of Rights (and its later additions) judges were going to have a major role.

There is a striking pattern in US constitutional history: attempts to restrict rights tend not to prosper. Prohibition was a really bad idea, clearly: but the recent Proposition 8 ruling rested on you can’t take away equal protection of the law once it has been granted.

How overturning bans on interracial marriage would have fared as a democratic football is an example that comes to mind.

Lorenzo, I’ve just made the same point on what is rapidly turning into a Facebook Thread o’ Doom. When Americans don’t like their judges acting as Platonic Guardians, I’m always tempted to float the British alternative – the doctrines of parliamentary sovereignty and implied repeal.

A friend of mine is actually writing his thesis on how countries like Australia, Britain and France — with their very powerful or sovereign parliaments — often enacted substantial civil rights and human rights legislation some time before the US managed to have a really awful, messy fight in the SCOTUS about exactly the same thing. He started rattling off dates, (Abortion Act 1967 v 1973 Roe v Wade etc) which really made me think.

When you have a written constitution and judges have the power to strike down laws in conflict with it, you’re going to have (a) really nasty fights about the substantive content of your constitution and (b) powerful judges as a result. Meanwhile, in Britain the House of Commons just turns into a bearpit from time to time…

I am also sure there is lots of fuzzy logic in law. Just think about precedent. You need enough bindingness to make it predictable, not so much that it’s inflexible…

A lot of law is about categorising events (the serious-money-producing parts of accounting likewise).

Facts of plaintiff’s case place her in Subset A, therefore she is entitled to outcomes B.

Classical set logic handles this kind of stuff well. But as you know, lots and lots of cases don’t have clearly defined categorisations.

Fuzzy logic excels at problems like these because it defines fuzzy sets. Instead of “Plaintiff belongs to A” being mutually exclusive of “Plaintiff does not belong to A”, you might say “Plaintiff belongs to A to the degree of 0.6 and to not-A at 0.4″.

Often these are turned into “linguistic variables”: Plaintiff has a “very strong” case, defendant B can’t rely on argument X because “it is very weak” and so on.

It builds from there. Fuzzy logic really does appear to “solve” a lot of classical logic paradoxes and explain legal reasoning better than standard logic does.

I wonder why issues around homosexuality raise such implacable emotions? (can an emotion be implacable?) Do all of the opponents have deep religious beliefs? In a way, that would be understandable. Are there any others? Where do their beliefs come from? On another blog, a commenter described one kind of homosexual behavior with disgust, suggesting that that decides the whole question. Disgusting, isn’t it? Most sexual behavior, described in everyday words, is somewhere between disgusting and ridiculous. It’s fun, though.

And thank you for that book reference, Jacques. I had seen a profile of Kahneman somewhere and made a mental note to track the book down. My mental filing system is letting me down these days. I must use Evernote more….

Habermas is Frankfurt School, which means he must inevitably vie with French Deconstructionists for infliction of complete incomprehensibility within his readership. Personally, would like to see politeness reduced to something more light hearted and informal, such as one would observe in action on a typical Saturday afternoon at Mosman Ladies’ Indoor Lawn Bowls Club. Had intended to include a summary of moderator traits, but will attend to this later.

I really like your summary of Mr Habermas’s argument: “if one can’t make a case reasonably, accepting the possibility of defeat, then while one should be permitted free speech, there is no requirement that anyone else has to pay attention.”

I think that any argument on any of these divisive topics needs to be prefaced with a background statement supporting your position. IE: I am heterosexual, married, and a Christian; I do/do not support gay marriage because…”

The mask of anonymity is one that really irks me. Even if you do not link to your real ID, I think any comment by ‘anonymous’ just loses weight compared to a comment by ‘MiscPoster12′ who has posed on a few forums. If nothing else, it becomes easier to see what else they have posted, and that makes it easier to ascertain their background position.

With that in mind: Full Disclosure. I am straight, engaged, sorta-christian, and I honestly don’t know if I support Gay Marriage enough to try to convince anyone else of my position, however I have no problem with it personally. (ducks as the trolls and flames start circling.)

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